Private and Public law
lesson 3
International law and the relationships
between the international legal order
and domestic legal order
International law and Italian law
______________________________
- international public law
- international private law
- comparative law
The “addressees” of international norms
_________________________________
- Relationships among States
- Relationships between States (member States) and
international bodies (international organizations,
etc.)
- individuals?
International law and Italian law
______________________________
Art. 10, par. 1, of the Italian Constitution:
“Italy conforms to commonly recognized
international law”
custom
International law and Italian law
______________________________
Art. 11 of the Italian Constitution: “Italy consents,
on a reciprocity basis with other States, to
limitations to sovereignty for the purpose of
ensuring peace and justice among Nations; it
promotes international organizations devoted to
that purpose”
treaties
International law and Italian law
______________________________
Art. 117 of the Italian Constitution: “The
legislative power is exercised by the State and
the Regions, within the limits set out by the
Constitution, the EU law and the international
legal order”
Implementing international law
into domestic law
__________________________________________
- ordinary proceeding: international norms are
“reworded” according to Italian law. Italian norms
“replace” international norms
- “special” proceeding: an “order” issued by an
Italian Authority makes the international norm
binding in Italy, by reference to the international law
source (e.g., art. 10 Constit. > international custom)
What if the international norms were
incorrectly transposed into domestic
law?
• Ordinary proceeding: the Italian norm will be
binding anyway. No right to apply the
international norm
• Special proceeding: in case of dispute, the
contents of the international norm will have to
be construed by the domestic Court
• Self-executing norms: they do not need
any implementation measure, under
Italian law
• Non self-executing norms: they need to
be supplemented / “completed” by
Italian legal norms. Non directly
applicable in Italy, unless by means of a
specific measure created according to
Italian law
In particular, non self-executing norms may be:
• norms creating mere faculties or generic rights
in favor of States
• norms creating obligations, but States do not
have internal bodies or proceedings to make
such obligations effective
non self-executing norms
Ordinary proceeding is required (they need to
be transposed and supplemented in their
contents)
International norms
in the system of sources of law
_________________________________
Ranking depends on the type of domestic measure (law, decree,
etc.) implementing the international norm into Italian law.
E.g.:
If the implementing norm is a provision contained in the
Constitution, the norm has Constitutional “ranking” (e.g., see Art.
10 of the Constitution)
if the implementing norm is an ordinary law, the ranking is
equal to that of ordinary laws
-
Similarly: administrative ranking
The implementation of
international custom
_________________________________
Automatic, continuous and permanent implementation into Italian
law
each domestic operator (Judge) will have to interpret the
international norm
-
Constitutional ranking (Art. 10 Constitution)
-
It prevails over ordinary laws
What if international custom conflicts with the Constitution?
In principle, the State should be under an obligation to conform to
international custom (and, thus, the Constitution should be amended).
However, the “domestic fundamental principles” may not be overturned.
Conflicts are rather unlikely to happen
The implementation of
international treaties
_________________________________
The Constitution does not provide for any obligation or automatism (in
contrast with Art. 10 Constitution, regulating international custom)
At least, need for an “implementing order” (ordinary law,
administrative deed, etc.), ensuring that the international norm is
applied in Italy (“incorporation by reference”), without “recreating” that
in Italy: domestic Courts will have to construe the international norm and
interpret/apply that. The Constitutional Court will be competent to
identify any conflict with the Constitution
Both the ordinary proceeding (creation of a new domestic norm)
and the special proceeding (incorporation by reference) may be
applicable
International law and Italian law
______________________________
Art. 80 of the Italian Constitution: in
specific cases, transposition of
international treaties
is reserved to the Parliament
“Le Camere autorizzano con legge la ratifica dei trattati
internazionali che sono di natura politica, o prevedono
arbitrati o regolamenti giudiziari, o importano variazioni
del territorio od oneri alle finanze o modificazioni di leggi”
International norms
in the system of sources of law
_________________________________
Ranking depends on the type of domestic measure (law, decree,
etc.) implementing the international norm into Italian law.
The norm so created tends to prevail over subsequent norms
deriving from the same source of law
International law and Italian law
______________________________
What if an international treaty is not transposed at all?
1- The treaty is not enforceable in the domestic legal
orders: domestic law will prevail
2- Should the norms contained in the treaty be
entirely disregarded, or may those represent an
(additional) basis for interpretation of matters
regulated by domestic law?
International law and Italian law
______________________________
What if an international treaty gives rise to a new international
organization, and the latter has its own regulating bodies, issuing
decisions binding the member States?
1- If the treaty expressly contemplates the power to issue selfexecuting norms, implementation is automatic (e.g., EU
Regulations)
2- Otherwise, implementation will have to be put in place from
time to time, with respect to each decision of the international
organization
> in any event: supervision by the Constitutional Court
The power of Regions
to implement international norms
_________________________________
Article 117 of the Constitution: (i) the central State is entitled to issue
norms regarding foreign policy and its relationships with the EU; (ii) Regions
are entitled to issue norms, in cooperation with the central State, regulating
the Regions’ relationships with the EU and with the international legal order;
international trade law; (iii) Regions: agreements with foreign States or
regions regarding matters in which Regions are competent, with a
“framework” law adopted by the central State
All “implementation orders” are issued by the central State: any
Regional laws conflicting with such orders may be declared
void/unconstitutional
Regions are entitled to issue detailed regulations, to ensure that
international norms are adequately applied in their territories.
However, according to the Constitutional Court, the Central State may at any
time replace the Regions when the need to ensure compliance with
international obligations comes into play
What if the domestic law does not ensure compliance
with international obligations?
International liability of the State
_______________________________________________________________
“Code” drafted by the United Nations Commission on International
law, regulating State liability:
1. a behavior attributable to the “State” (in a large sense, including,
inter alia, Regions and other territorial entities)
2. a breach of binding international law
What if a breach of international law
is put in place by an entity
acting outside the scope of its powers?
________________________________________________________
(A) The State (to which the acting body belong) is
also responsible (art. 7 of the UN Commission
“Code”): the State could have prevented/cured
the breach event, but it didn’t
(B) The State is not responsible: the acting body is
the only liable subject. The State, however, is
liable for failing to take appropriate control
measures